GST Provisions for Work Contractors: Registration, ITC & Place of Supply

GST Registration, Input Tax Credit And Place Of Supply Provisions For Work Contractors (Doing Work In State Other Than State Of Registration)

It’s been more than 6.5 years since the inception of the Goods and Services tax in our country but there still are too many questions unanswered about the understanding of its provisions. Amongst many such lingering issues, I am trying here to throw some light upon the legal contours associated with:

GOODS AND SERVICE TAX PROVISIONS FOR WORK CONTRACTORS

REGISTRATION

There has always been a doubt over the requirement of registration for a person supplying Work Contract (hereinafter referred to as WCT) service because of varied understanding of the legal provisions involved therein.

Let’s refer to some rulings in this regard:-

Although the majority of them have ruled that there shall not be any mandatory requirement for regular registration in states where WCT supply is given, still we shall look upon some legal provisions of CGST Act 2017 on which the aforementioned rulings have emphasized: –

1. Section 22. Persons liable for registration – Every supplier shall be liable to be registered under this Act in the State or Union territory, other than special category States, from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees: ……………………

The term “from where he makes a taxable supply of goods or services or both” takes us to:-

2. Section 2(71). Definition of “location of the supplier of services” means –

(a) where a supply is made from a place of business for which the registration has been obtained, the location of such place of business;

(b) where a supply is made from a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment;

(c) where a supply is made from more than one establishment, ……………..

(d) in absence of such places, ………………….

and, post reading clauses (a) and (b) it is important to understand the definition of: –

3. Section 2(50). Definition of “fixed establishment” means – A place (other than the registered place of business) which is characterised by a sufficient degree of permanence and suitable structure in terms of human and technical resources to supply services, or to receive and use services for its own needs

4. Section 2(85). Definition of “place of business” means – A place from where the business is ordinarily carried on, and includes

(a) warehouse, a godown or any other place where a taxable person stores his goods, supplies or receives goods or services or both; or

(b) a place where a taxable person maintains his books of account; or

(c) a place where a taxable person is engaged in business through an agent, by whatever name called;

Although it is a subjective topic, in cases where the contractor is allotted a temporary workplace adjacent to or on work sites by the principal employer/client for the execution of work, such sites shall not fall under the definition of “Fixed Establishment” because:-

• Such sites are temporary in the form of portable prefabricated cabins/ containers for site engineers/supervisors to use for the execution of work and don’t have a sufficient degree of permanence.
• Such sites have no suitable structure in terms of human and technical resources to supply WCT services, rather such trait is present in the head office of the registrant (registered Place of Business) from where his designing and planning team is instructing on whose directions the site engineers/ supervisors usually operate.

Practical & Legal Challenges in having multiple registrations in WCT Supply states: –

1. Filing of registration Form REG-01: – There is no written agreement (neither rent agreement nor consent letter) for occupancy of such work site offices, to be uploaded for filing Form REG-01.

Also, there is neither any Fixed Establishment nor Place of Business anywhere else, in the state where work has been carried on, for it to qualify as the “Location of supplier of services” pertaining to relevant WCT Services.

2. No godown or storage of goods:- Goods are usually kept under open sky, near railway tracks (Railway contracts), or at work sites in case of WCT services involving Bridge works, Construction of residential or commercial buildings, Road constructions, Contracts involving construction of structures in Cement plants, Government or Private departments etc.

It gets consumed very soon post-delivery, and there is no specific need to store it in Godowns or Warehouse, hence such sites don’t fall under clause (a) of the definition of “Place of business”.

3. Complying with Section 35 read with CGST Rules 2017:- Even if the person applies for registration at some place foreign to the actual work site in the state post somehow arranging necessary documents (although it shall not be advisable), the books of accounts pertaining to such WCT Supply are still maintained at the Principal place of business (Head office) which is in strict violation of legal provisions, if separate registration is taken.

4. Acknowledging the Legal notice/letters:- The applicant would not be able to acknowledge the physical notices/letters served under various provisions especially Chapters 12 to 15 at such place, because such premises are not occupied by any person and are used for the sake of registration only (if applied).

5. Casual Taxable Person: – Such registrations are usually considered a good option for, a person who does not have a fixed place of business in the state for execution of work contracts, but there is a limitation as per section 27 of the law for a period of validity which is merely 90 days (which can be extended to 90 more days).

So basically, if the contract includes an execution period of more than 180 days i.e. 6 months, then such a category of registration is not among the available option.

CONCLUSION:-

Given the above-discussed facts and circumstances, for section 22 read with section 2(71), the Location of the supplier of services in case of WCT services shall always (as per clause (a)) be “Principal place of business” i.e. location of head office, and the applicant need not be required to take separate registration in the state where such WCT supply is being provided.

INPUT TAX CREDIT

Input Tax Credit (hereinafter referred to as ITC):- For the WCT supplier there involves both inward supply of Goods and Services:-

Legal Provisions:-

Section 16 – Eligibility and conditions for taking input tax credit

Sub-section 2

(b) he has received the goods or services or both.

Almost all the sub-section/clauses are considered to be fulfilled but there has been a buzz over clause (b) of sub-section 2 which asks for receipt of goods or services to avail the ITC and is contended that if the person is not registered in a particular state then how does the goods or services qualify to be “RECEIVED” by WCT provider, without presence in that state as the supply is delivered at work site and not at the place of registration.

But, there is an explanation to this clause which has further been amended via CGST Amendment Act CGST Amendment Act 2018 w.e.f 01-02-2019 in respect of services. It says:-

[Explanation. – For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services–

(i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise;

(ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person;]

CONCLUSION:-

Hence, as far as the receipt of goods or services as per S. 16(2) (b) is concerned, the above-mentioned explanation makes it clear that even if the place of delivery at a work site in state other than the state of registration, (or even at some work site in same state but at a location other than the place of registration) the “SUPPLY WOULD BE CONSIDERED DEEMED RECEIVED BY REGISTERED PERSON” for fulfilment of “receipt”.

PLACE OF SUPPLY (For Inward supplies)

Let’s again refer to a ruling in this regard –

As already ruled above, for goods procured from suppliers registered in the same state of registration, CGST + SGST would be charged and from suppliers registered in any other state including the state of the work site, IGST would be charged by suppliers.

For services, it has been interpreted that the sub-contractor of services which can be in the form of Manpower supply, Engineering work, Earth work, Machinery rental services, etc. or even the complete work being sub-contracted to some other person,

Place of supply shall be decided based upon the location of immovable property as per Section 12(3) (a) of the IGST Act which is reproduced below:

(3) The place of supply of services,––

(a) directly in relation to an immovable property, including services provided by architects, interior decorators, surveyors, engineers and other related experts or estate agents, any service provided by way of grant of rights to use immovable property or for carrying out or co-ordination of construction work; or

(b)……

(c) ……,

(d) ……

shall be the location at which the immovable property or boat or vessel, as the case may be, is located or intended to be located:

One important thing to be noted here is that clause 3 is to be referred to only in case the services provided are “directly” in relation to an immovable property, whereas such direct relation is absent in case of services provided by the sub-contractor to the principal contractor, instead such services are made to Principal Contractor as per his directions, hence Place of supply is to be determined as per section 12 (2) (a) i.e. it will be the location of registered person.

CONCLUSION:-

For goods, the Place of supply will be determined as per Section 10(1) (b) of the IGST act being billed to-shipped to transactions and will always be the Principal place of business i.e. state of registration of Contractor irrespective of the Place of delivery.

and,

For services, as discussed above Place of supply shall be determined as per Section 12(2) (a) of the IGST Act and it shall be the location of the registered person (Contractor).

DOCUMENTS FOR THE MOVEMENT OF GOODS

1. E-Way bill

CBIC has issued a press release dated 23/04/2018 in this regard, clarifying the requirement of the E-Way Bill for the “Bill to Ship to” model of supplies.

There is an option over the E-Way bill portal which allows to select the transaction type as a “Bill to Ship” model and goods can be delivered to work sites conveniently in such a scenario.

2. Delivery Challan

Rule 55(1) (c) of CGST Rules 2017, governs the rule pertaining to “Transportation of goods without issue of invoice”

The contractor is required to move consumables and assets to the work site, for mobilization of work and later post-completion or during the work, such goods are also moved to other sites (which may be in some other state too) as per requirement of work.

Such transactions don’t qualify for the supply of goods, rather the goods are said to be moved for “Own use”

In such cases, a delivery challan needs to be prepared as per Rule 55(1) (c).

Also, the value of goods shall be determined as per books of accounts, and no tax shall be mentioned as such “transport is not for the supply to any consignee”.

HOW REVENUE TRAVELS IN WORK CONTRACT SERVICES

Place of supply is a crucial factor in determining the state to which revenue should accrue.

From section 12(3) (a) of the IGST Act it seems the lawmakers have an interest in accruing the revenue to the state where such immovable property is located in the case of WCT supplies.

Let’s understand this with an example:-

Party A having its head office in Madhya Pradesh, has been awarded a contract for the construction of an immovable property located in Rajasthan by Party B registered in Rajasthan.

For the execution of work, Party A will procure goods and services from various sellers across the country to be delivered directly to the work site located in Rajasthan.

It will also deploy owned assets and goods for own use at different intervals during the contract period, which will not be bought afresh and will be re-used at other sites post-completion of the present contract.

Here we are going to compare 2 Cases:-

1. Party A doesn’t take separate registration in Rajasthan

2. Party B takes separate registration in Rajasthan

CONCLUSION:-

After a comparative analysis of both cases, it is quite evident that the revenue finally travels to the state where the work site is present, irrespective of the state of registration of the WCT supplier.

Hence the WCT supplier shall be at his liberty to take the registration and shall not be forced to take separate registration, as it is not in violation of the provisions of law as discussed above.

Disclaimer: – The opinions expressed in this article are strictly personal to the author. The author does not guarantee the accuracy or completeness of any information nor for any errors, omissions, or claims for damages, including exemplary damages, arising out of use, inability to use, or with regard to the accuracy or sufficiency of the information contained.  The said works do not constitute legal, medical, or other professional advice.

SUGGESTIONS

1. CBIC shall come up with circulars or amendments in statute to bring more clarity to legal provisions for Work contractors.

2. Some standard operating procedures shall be introduced for work contractors operating in other states.

3. GSTN and CBIC shall introduce an option to update additional business places in Core-field, which is located in a state, other than the state of the principal business place.

4. Casual taxable person registration shall be allowed to be valid for more than 6 months, as per the time limit of the work order.

5. Some specific changes shall be made in the Eway bill form for transit of goods on delivery challan (for own use)

6. Assessment, Audit, Demand & Recovery, etc. notices/letters shall always be communicated electronically to GSTIN held by head office for timely compliance, because GSTIN of site offices are held for a temporary period and nobody is present their post completion of work to acknowledge the physical notices.

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